Home / General / Article III and Judicial Supremacy II: Is Judicial Supremacy Desirable?

Article III and Judicial Supremacy II: Is Judicial Supremacy Desirable?

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In my previous post, I discussed the question of judicial review versus judicial supremacy. The reason I bring this up is to address the arguments that John Roberts made as a lawyer for the Reagan Administration, defending the constitutionality of a proposal to strip the court of its jurisdiction to hear desegregation cases. It is, first of all, important to distinguish between policy and constitutional questions here. Obviously, I think that this proposal is awful public policy, I trust most of you do too, and if you don’t I’m not going to be able to convince you. Having disposed of the easy question, let’s move on to the more interesting question: is limiting or stripping jurisdiction from the courts constitutional?

The basis for the constitutionality of jurisdiction-stripping is actually quite strong. Article III, after giving Congress the discretion to set up appellate courts, says that “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” This language is quite unequivocal, and Congress has used these powers before. Lest you think this is a “conservative issue,” the most recent use was in the Norris-LaGuardia Act, probably the most strongly pro-labor legislation ever passed by Congress. The fact that Congress has great discretion over the lower federal courts creates a real puzzle for both opponents of jurisdiction-stripping and supporters of judicial supremacy–given that Congress doesn’t have to create courts at all, it seems implausible that it could be unconstitutional to merely remove or limit a court’s jurisdiction.

There is, however, a serious argument that jurisdiction-stripping is unconstitutional, which brings us back to our previous discussion. The argument is that jurisdiction-stripping creates a right without a remedy: rights declared by the court must inherently be judicially enforceable. I think, at least insofar as constitutional rights are concerned, this argument is probably right–if you accept the premise of judicial supremacy. (This also has the bonus of preserving Norris-LaGaurdia, which involved equity powers established by Congress.) If you don’t, however, then I think Congress clearly has this power. Under the logic of Marbury, the courts cannot apply unconstitutional legislation, but courts have no inherent right to pass judgment on the legislation beyond that. So the argument boils down to whether you accept judicial supremacy in constitutional interpretation.

I don’t have any big punchline here; as I said before, I don’t have a strong view, for a few reasons. (Good starting points for a stronger argument would be Larry Kramer’s Popular Constitutionalism and Judicial Review or Mark Tushnet’s Taking the Constitution Away From the Courts.) First, as iocaste says in the comments to the previous thread, there is a difficult conceptual problem that arises if there’s no way of resolving constitutional conflicts (although the puzzle remains if the courts remain unchecked too.) Second, I think it’s unlikely that judicial supremacy is going away, and certainly judicial review won’t, so the argument on some level is a parlor game. Third, while I don’t agree with everything in Tushnet’s book I think there’s some truth to his claim that judicial nullification of legislative acts in the long run is “noise around zero,” generating essentially random differences from other political institutions, some better, some worse. (More specifically, from my perspective I think judicial supremacy can be expected to be better for civil liberties and worse for economic policy and federal power. If you’re a left-communitarian, judicial review is pretty much lose-lose for you.) My main concern, however, is that progressives not evaluate the merits of limiting the court’s power through the lens of any individual case. Hence, a few points for progressives to keep in mind:

Democracy is not at stake in discussions about judicial review. The answer to the question of whether judicial review is necessary for liberal democratic government is a clear, unequivocal “no.” Are the U.K., pre-1982 Canada or Australia less democratic than the United States? I sure don’t see it; if anything, in the same time period their human rights records are better. It’s worth remembering that the American South remained largely composed of apartheid police states for nearly a century after the Civil War, despite judicial review and a Constitution that guaranteed due process, equal protection, and voting rights. Ultimately, if a society is not committed to democracy, judicial review won’t stop the tide; if they are, judicial review is not necessary.

Earl Warren is dead. It’s worth remembering that the 5-liberal-votes majority of the Warren Court lasted from 1963-8, and also happened to coincide with arguably the most progressive legislative period in our history. Liberals have a tendency to regard this highly anomalous court as if it was typical. But, in fact, the Supreme Court has generally not been a progressive institution, and it won’t be again in the near future either. And on a related point:

The Court is not a reliable defender of powerless minorities. I don’t mean to pick on Armando again, but his claim that ‘[t]he Supreme Court of the United States has been the bulwark of the defense of citizens against the abuse of government” is quite problematic. Yes, there are some major exceptions: church and state, Brown, Roe, some of its criminal justice decisions (and, again, most of these came during a few years.) But you also–to pick a few obvious examples from many–have Dred Scott (African-American citizens cannot be citizens of the United States), The Civil Rights Cases (greasing the skids for Jim Crow by striking down the Civil Rights Act of 1875), Hammer v. Dagenhart (striking down a federal law banning the interstate shipment of goods made with child labor), Debs v. US (upholds the conviction of a labor leader given a long jail term for making a speech during WWI), Korematsu v. US (or, as Michelle Malkin calls it , “porn”), McCleskey v. Kemp (the death penalty is constitutional in application despite clear evidence of racial bias in sentencing), and on and on and on. The Court did nothing about the Alien and Sedition Acts, upheld the Fugitive Slave Act and segregation while striking down Reconstruction civil rights acts, did nothing about free speech violations during WWI, struck down lots of progressive economic regulation, did nothing about female disenfranchisement, and did little about the abuses of McCarthyism until McCarthy had been discredited. And then we have the comparative problem: if you have any evidence that the United States has a better human rights record than similar countries that don’t have judicial review, I’d like to see it.


What I want to stress, then, is that in thinking about the Court and potential constraints on the Court’s power is that progressives should not conflate the effects of judicial supremacy with judicial decisions you like. Supporting judicial supremacy does make it easier to protect Roe v. Wade. But is also means that you have to reject Lincoln’s argument that while Dred Scott was binding on the litigants, it should not be accepted as right when Congress was voting on legislation. Now, it could be that my implication that the Court, in the long run of American history has been more conservative than the other political branches is wrong, although I’m pretty skeptical. More plausibly, it could be argued that given established doctrines the Court is likely to be more progressive in the future than in the past; obviously, nobody knows. I’m certainly open to the claim that judicial supremacy is a good thing, or that my general support for legislative overrides is misguided, of that my claim that there is a strong constitutional basis for Article III jurisdiction-stripping is incorrect.. But I do think that proponents of judicial supremacy need to stop making inflated claims about what judicial power can accomplish and to asses the totality of the Court’s history.

(Cross-posted at Majikthise).

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